0120152926
03-02-2017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Antwan N,1
Complainant,
v.
Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 0120152926
Agency No. 156710002117
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated June 25, 2015, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Industrial Engineering Technician at the Agency's Marine Depot Maintenance Command, Program Management Division, Marine Corps Logistics Base facility in Barstow, California. On June 1, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Filipino2), disability (50% loss of knee mobility), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On October 22, 2014 Complainant was not selected for the position of Supervisory Production Controller, GS-12; and
2. On December 16, 2014, 2014 Complainant was not selected for the position of Supervisory Production Controller, GS-12.
The Agency dismissed the claims for untimely EEO Counselor contact.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The record discloses that the most recent alleged discriminatory event raised in Claim #2 occurred on December 16, 2014 and the Agency found that Complainant did not initiate contact with an EEO Counselor until February 17, 2015, which is beyond the forty-five (45) day limitation period.
On appeal, Complainant maintains that he contacted an EEO Counselor prior to February 17 and that his Counselor contact was therefore timely. Specifically Complainant has provided a copy of an email he sent to an EEO Counselor on December 10, 2014, stating:
I would like to file an EEO Discrimination [sic] reprisal for prior EEO Activity. . . . Well I just interviewed for a GS 12 for material last month. The Agency cancelled the job after all the interviews took place. However, I found out that [another applicant (S)] was promoted to the GS 12 that was supposedly cancelled. . . . I just found out about [S] getting the job that was closed down around 7: P.M. . . . I want to file a new EEO as soon as possible. And I want the whole situation looked into immediately.
Complainant's Appeal Brief.
In subsequent emails to the same EEO Counselor, dated January 21 and 22, 2015, Complainant clarified that the positions in question were the Supervisory Production Controller, GS-12, positions and the dates of the interviews were October 22 and December 16, 2014. See id. On appeal, the EEO Counselor has submitted a sworn statement confirming Complainant's claims. See Agency's Appeal Brief, Exhibit 1.
With regard to claim 1, Complainant's earliest EEO Counselor contact was thus on December 10, 2014. While this is more than 45 days after October 22, 2014, we note that the two dates referenced by the Agency, October 22, and December 16, 2014, merely refer to the dates Complainant was interviewed for the positions, not the dates he learned of the alleged discriminatory actions. Complainant's July 1, 2015 email to the Counselor states "I believe that my Interview [sic] dates were Oct 22 for the first GS-12 and Dec 16 for the second Interview gs-12 interview [sic] all for the same job." Complaint File, Enclosure # 10. The Commission has adopted a reasonable suspicion standard to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Appeal No. 01965648 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
In the instant case, the time limitation is not triggered when Complainant was interviewed for the position on October 22, 2014, but when he reasonably suspected discrimination, which according to Complainant occurred on December 10, 2014, when he learned that the position, which he had been led to believe had been cancelled, had in fact been offered to S. In that December 10 email, Complainant states "I just found out about [S] getting the job" that same day. Because Complainant contacted an EEO Counselor via email that same day and evidenced an intent to initiate an EEO complaint about the nonselection for which he had previously been interviewed, we find his EEO Counselor contact was timely.
With regard to claim 2, while it is not clear exactly when Complainant learned he was not selected, and thus when the discriminatory act allegedly occurred, the record shows he was interviewed on December 16, 2014 and emails to the EEO Counselor dated January 21 and 22 evidence an intent to initiate an EEO complaint about the nonselection for the second position. Thus, even assuming arguendo that Complainant was notified of his nonselection the same day he took the interview, he would have had until January 30, 2015 to timely contact a Counselor. We therefore again find that his EEO January 21, 2015 Counselor contact with regard to claim 2 was timely.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Dismissal and REMAND the claim for further processing in according with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 2, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The Commission considers Filipino to be a National Origin, not a race. However we use the definition provided by the complainant.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120152926
5
0120152926